01A33118
03-23-2000
Allen R. Atkins, Complainant, v. Michael Leavitt, Administrator, Environmental Protection Agency, Agency.
Allen R. Atkins v. Environmental Protection Agency
01A33118
March 23, 20004
.
Allen R. Atkins,
Complainant,
v.
Michael Leavitt,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A33118
Agency No. 2002-0026-NC
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Civil Engineer, GS-13, at the agency's Research Triangle Park,
located in Raleigh, North Carolina. Complainant sought EEO counseling
and subsequently filed a formal complaint on November 21, 2001, alleging
that he was discriminated against on the bases of race (Caucasian) and age
(D.O.B. 2/21/39), when he was not selected for the position of General
Engineer (Team Leader), GS-14, advertised under Vacancy Announcement
No. EPA-RTP-MP-2001-106.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its decision, the agency stated that complainant established a
prima facie case of race and age discrimination. However, the agency
concluded that management provided a legitimate, nondiscriminatory
reason for its non-selection of complainant. Specifically, the agency
stated that the selectee's responses to the panel's questions were
superior to complainant's responses. Finally, the agency concluded that
complainant failed to establish that the agency's reason was a pretext
for discrimination.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green. 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its action. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
The record contains the affidavit of the selecting official (SO) who
was also complainant's supervisor since July 1990. In his affidavit,
the SO stated that the selectee's qualifications were superior to
complainant's qualifications. He stated that he based this conclusion
on the applications and the selective/ranking factors for the position.
The record reveals that the selectee had more formal education than
complainant. Complainant had an AA in Pre-Engineering and a BS in
Civil Engineering, while the selectee had a BA and MS in Engineering.
The record also reveals that the selectee had a more varied work
experience than complainant. Complainant had experience as a Sanitary
Engineer, Design Engineer, General Engineer and Civil Engineer between
1965 and 2001. By comparison, the selectee had experience including
engineering work from 1985 to 2001, some of his worked was as an
instructor at a U.S. Army Engineer School; as a Battalion Personnel
and Logistics Officer; as a U.S. Army Engineer Company Commander; as
an Assistant Professor at Military Science; as a Military Assistant
to the District Engineer-Construction, Corps of Engineers; and as an
Environmental Engineer for the agency.
The affidavits of the panel members reflect that they were uniform
in their assessment that the selectee gave better answers during the
interview than complainant gave. They concluded that the selectee showed
more passion, excitement and enthusiasm for the position. Specifically,
they testified that the selectee was very conversant on all aspects of
engineering and all aspects of the position. The panel members stated
that the selectee elaborated his responses and always gave examples from
his work in the agency as well as in the U.S. Army Corps of Engineers.
They stated that the selectee had great communication skills and described
past experiences that illustrated his ability to work with and lead teams
of engineers, as well as others. In comparison, they found complainant's
interview was substandard. The panel members testified that complainant
gave short answers and no examples so that they went through the questions
in about twenty minutes.
In his affidavit, complainant stated that after more than thirty
years in the engineering field with experience in laboratory design,
electrical engineering, he believed that he was the most qualified.
He stated that no one else had laboratory design experience. Complainant
alleged that the panel did not have a subject matter expert (SME) on it.
Complainant stated that no questions were asked about engineering.
The record reveals that the �laboratory design� was not one of the
selective/ranking factors. The record also reveals that at least three
of the panel members were as well qualified as SMEs based on prior work
experience. Specifically, one of the members served as a Project Manager
for the construction of the new EPA Research Laboratory; another one
worked in one of the scientific divisions that received services for the
Administrative Services Division; and another one was familiar with the
tasks of the Engineering Team in her previous service as Deputy Division
Director of the Facilities Division, at Headquarters in Washington D.C.
The agency attested that a SME is a person who knows a job with all its
duties and requirements, stating the SME need not be a person who is
specialized in the field. Finally, assuming that it is true that the
panel members did not ask questions about engineering, the record does
not establish that the questions asked were unrelated to the requirements
of the position at issue.
Upon review, the Commission finds that the agency articulated a
legitimate, nondiscriminatory reason for its action in making the
selection. The selectee's interview was superior to complainant's
interview. The selectee also had more varied experience and more formal
education than complainant. Where, as here, the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis to the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. See United States Postal Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 5900159 (June 28, 1990).
In nonselection cases, pretext may be found where the complainant's
qualifications are plainly superior to the qualifications of the selectee.
See Wasser v. Department of Labor, EEOC Request No. 05940058 (November
2, 1995). The Commission also notes that an employer has the discretion
to choose among equally qualified candidates provided that the employment
decision is not based upon unlawful criteria. The Commission is not
persuaded that complainant's qualifications were so plainly superior to
the selectee's qualifications and experience so as to warrant a finding
of pretext. Complainant has not shown that his interview was superior
or that the interview process was designed to disadvantage him. We find
therefore that complainant has failed to rebut the agency's articulated
legitimate, nondiscriminatory reason. Moreover, complainant has failed
to show, by a preponderance of the evidence, that he was discriminated
against because of his race or age.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden
Director
Office of Federal Operations
March 23, 20004
__________________
Date